Politicization of the FOIA process by the Department of Homeland Security

Obama’s hypocrisy towards government transparency knows no bounds. While he was publicly proclaiming that his administration would “adopt a presumption in favor” when it came to FOIA requests, behind closed doors the Department of Homeland Security (DHS) handed over complete control of its FOIA process to political appointees.

In past administrations FOIA requests were routinely handled by DHS staffers. While the Bush administration required that political appointees be notified whenever any controversial requests came in, they did not interfere with the process. This wasn’t good enough for the Obama DHS which had been embarrassed in April 2009 when their infamous “rightwing terrorist” memo that warned law-enforcement agencies of “hate-oriented,” “paranoid,” “dangerous” and “violent” conservative oriented Americans became public.

Seeking to prevent any future embarrassing revelations, in September 2009 DHS Secretary Janet Napolitano handed down directive that not only did sensitive FOIA requests had to be reported to the political staff, none could be released without their approval. Criteria for political review included requests that addressed a “Presidential or agency priority,” “will garner media attention” and “associated with a controversial or sensitive subject”. This caused hundreds of routine FOIA releases to be held up for months, if they were processed at all.

DHS staffers characterized the new process in internal emails as “bananas” and “constant stonewalling”. Chief privacy officer, Mary Ellen Callahan, warned of potential lawsuits because of unreasonable delays. “This level of attention is CRAZY,” Callahan wrote in late 2009. Her emails went on to state “By burdening the FOIA Office with unnecessary questions and ignoring their concerns, the Secretary’s political staff created a problem that did not exist during the previous Administration… There wasn’t a review process at all previously. It was more of just a reporting process just to make individuals or to make the Front Office aware of requests.”

An Inspector General investigation confirmed the “Office of the Secretary has had unprecedented involvement in the Freedom of Information Act process beginning in 2009” and that political appointees had improperly used their influence to remove “potentially embarrassing wording” from FOIA releases.

In March 2011 a House Committee on Oversight and Government Reform report, A New Era of Openness? How and Why Political Staff at DHS Interfered with the FOIA Process, included the following:

Political staff under DHS Secretary Janet Napolitano have corrupted the agency’s FOIA compliance procedures, exerted political pressure on FOIA compliance officers, and undermined the federal government’s accountability to the American people.

Secretary Napolitano’s political staff attempted to frustrate the present investigation through official non-cooperation, witness tampering, and the attempted theft of Committee documents.

Substantive edits were made to FOIA responses to requests for documents related to the American Recovery and Reinvestment Act and Umar Farouk Abdulmutallab, the so-called Christmas Day bomber.

Political staff, with the full support of the Office of General Counsel, took steps to shield themselves from embarrassment at the expense of honoring the letter and spirit of the statute.

Because of the blowback their illegal hampering of FOIA requests has caused, DHS political appointees no longer use e-mail when communicating with FOIA officers and now rely on the phone to “end a paper trail that could prove scandalous”.

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